Canadian Refugee Procedure/Guideline 4 - Gender Considerations in Proceedings Before the Immigration and Refugee Board

Women and girls constitute 47 percent of refugees and asylum-seekers globally. The adoption of guidelines for protection in cases of gender-related persecution has been described as an improvement in the implementation of the 1951 Refugee Convention by academic commentators. Canada's guidelines are part of an international trend to implement such guidelines or to legislate sex as an additional cause for recognition as a refugee, as as been done in El Salvador, Nicaragua, Panama, Paraguay, Uruguay, and Venezuela.

The Guideline

The text of the relevant Guideline is available on the IRB website.

General commentary

The guidelines may only be applied where gender is at issue in the proceeding or claim

In Agaman v. Canada, the court held that the Chairperson’s Guideline 4 could not be applied in the case because a fear of persecution based on gender was not alleged and there were no facts to support such persecution or other difficulties specific to the female applicant’s gender:

Les demandeurs ont également fait valoir que la SPR n’a pas « bien pris en considération » les Directives numéro 4. À cet égard, ils affirment qu’étant donné qu’ils n’ont plus de statut permanent au Brésil, ils devront retourner en Haïti. Ils soutiennent que la SPR aurait dû examiner si la demanderesse bénéficierait d’une certaine protection en Haïti, celle-ci étant ciblée par les partisans de Lavalas en tant que conjointe du demandeur. Ils reprochent à la SPR de n’avoir posé aucune question à la demanderesse sur le sujet et de n’avoir fait aucune mention des Directives numéro 4 dans ses motifs. La Cour estime cet argument mal fondé. La demanderesse n’a jamais allégué une crainte de persécution fondée sur le sexe et il n’y a pas de faits tendant à démontrer une telle persécution ni de difficultés spécifiques liées à son sexe. Les Directives numéro 4 ne trouvent pas d’application dans toutes les situations où une femme demande la protection. Il faut que le sexe d’une demanderesse joue un rôle dans sa crainte de persécution. La crainte de persécution en l’espèce est exclusivement basée sur son association avec le père du demandeur et à son passé politique. Il n’a pas été question de persécution ou discrimination fondée sur le sexe. Par ailleurs, la Cour n’a relevé aucune insensibilité à l’égard de la demanderesse.

Not mentioning the guidelines will not be fatal to a decision where the record demonstrates compliance with them

RAD Member Atam Uppal noted in TB5-05211 that even though the RPD had not mentioned the Gender Guidelines in its reasons, nonetheless the RPD had respected the intent and spirit of them in the case at hand. The panel commented: "I note that the Appellant does not point to any evidence that the RPD was insensitive or inappropriate in its questions, or that it conducted the hearing in a way that was insensitive to the Appellant’s emotional state or her well-being." As such, the RAD held in that case that despite not mentioning the guidelines in the original decision, this was not a basis on which to overturn the decision in and of itself. This is consistent with determinations from the Federal Court on point: Yu v. Canada. In contrast, however, where a panel has not meaningfully applied the Gender Guidelines, the decision should not generally be considered a reasonable one and the courts have frequently returned matters to the Board for redetermination.

The Board can consider the Gender Guidelines where a claim involves the "secondary victims" of gendered persecution, such as parents

The Refugee Appeal Division has concluded that "Although the Chairperson’s Guideline 4 addresses the primary victim of rape, I find that the secondary victims, in this case the parents, must benefit from a certain sensitivity and appropriate understanding on behalf of the decision-maker when he questions them about this". That was a case in which the primary victim of the gendered persecution was not a party to the refugee claim, but the RAD nonetheless, on the basis of, inter alia, insensitive questions that had been posed to these parents, remitted the matter to the RPD for reconsideration and ordered that "The RPD must take into consideration the Chairperson’s Guideline 4 in the adjudication of this case."

Section D

D. Special Problems at Determination Hearings
Women refugee claimants face special problems in demonstrating that their claims are credible and trustworthy. Some of the difficulties may arise because of cross-cultural misunderstandings. For example:

1. Women from societies where the preservation of one's virginity or marital dignity is the cultural norm may be reluctant to disclose their experiences of sexual violence in order to keep their "shame" to themselves and not dishonour their family or community.

2. Women from certain cultures where men do not share the details of their political, military or even social activities with their spouses, daughters or mothers may find themselves in a difficult situation when questioned about the experiences of their male relatives.

3. Women refugee claimants who have suffered sexual violence may exhibit a pattern of symptoms referred to as Rape Trauma Syndrome, and may require extremely sensitive handling. Similarly, women who have been subjected to domestic violence may exhibit a pattern of symptoms referred to as Battered Woman Syndrome and may also be reluctant to testify. In some cases it will be appropriate to consider whether claimants should be allowed to have the option of providing their testimony outside the hearing room by affidavit or by videotape, or in front of members and refugee claims officers specifically trained in dealing with violence against women. Members should be familiar with the UNHCR Executive Committee Guidelines on the Protection of Refugee Women.

The Division is required to consider the guidelines where there are inconsistencies in testimony and the applicant has suffered abuse

If a woman has suffered abuse and has inconsistencies between her testimony and her BOC narrative, the RPD is obliged to weigh the evidence with the Gender Guidelines in mind. It is a best practice for the Division to show that it has considered the guidelines while it is making credibility findings, and not to simply consider them in a separate section at the end of its reasons. In Okpanachi v. Canada, the Federal Court found that the Board had erred when it did not do so:

Here, the RAD did not even refer to the Gender Guidelines in its credibility analysis, let alone assess why the omissions cannot be explained by the factors set out in the Gender Guidelines, before accepting the RPD’s conclusion on credibility based on the omissions. As such, I find the RAD has not taken into account the Gender Guidelines “in a meaningful way” when it adopted the RPD’s credibility finding based on the omissions in the BOC.

A medical diagnosis is not required for gender-related factors to be relevant in explaining a claimant difficulties in giving evidence

Footnote 31 of the guidelines states that "In R v. Lavallee, the Court indicated that expert evidence can assist in dispelling these myths and be used to explain why a woman would remain in a battering relationship." That said, nowhere do the Gender Guidelines state a medical diagnosis is required for gender-related factors to be relevant in explaining a claimant’s difficulties in giving evidence. If a panel refuses to take into account the guidelines and gender in assessing a claimant's evidence on the basis that they have not provided a professional diagnosis, they will have acted on the basis of an irrelevant consideration.